The Mississippi Court of Appeals, consistent with a recent Mississippi Supreme Court opinion, has held that a statutory health care surrogate can bind a non-party to an arbitration agreement under Mississippi law if that agreement is part of a health care admission contract.

In Covenant Health & Rehabilitation of Picayune, L.P. v. Lumpkin ex rel. Lumpkin, No. 2007-CA-00449-COA, 2008 WL 306008 (Miss. Ct. App. Feb. 5, 2008), patient Lumpkin brought claims of negligence and medical malpractice against Covenant. Upon Lumpkin's admission to Covenant's care facility, she was incapacitated, and daughter McDaniel executed all admissions documents, including an incorporated arbitration agreement. Pursuant to this agreement, Covenant moved to compel arbitration of Lumpkin's claims. The trial court denied the motion, finding the agreement substantively unconscionable.

The Court first agreed that McDaniel had the capacity to bind Lumpkin to the arbitration agreement at the time of admission. Lumpkin did not dispute that McDaniel served as her statutory health care surrogate under the Uniform Health-Care Decisions Act, Miss. Code Ann. § 41-41-201, et al., at the time of admission. Consistent with the Mississippi Supreme Court's decision in Covenant Health & Rehabilitation of Picayune, L.P. v. Brown, 949 So.2d 732 (Miss. 2007), the Court held that this statutory authority to bind extended to the entire contract, including the incorporated arbitration agreement.

Next, the Court held that the arbitration agreement was supported by consideration. It viewed the arbitration agreement as a mutual obligation borne by both parties, and just one part of the consideration exchanged under the admission contract.

After determining that the arbitration agreement's broad language encompassed all disputes between the parties to the admission contract, the Court found the agreement was not fraudulent, nor was it unconscionable to the point of invalidity. No fraud in the inducement existed, said the Court, because there was no evidence of misrepresentations within the contract. The Court did acknowledge that many of the same provisions held substantively unconscionable in Brown, 949 So.2d at 737-41, were present in this arbitration agreement, but, as in Brown, the Court held that these provisions were severable, and did not warrant invalidating the entire agreement.